Posted
by
timothy
on Monday February 22, 2010 @12:47AM
from the eff-v.-epic-oh-my dept.

somanyrobots writes with an excerpt from New York Law School professor James Grimmelmann's cogent report from Friday's fairness hearing about the current Google Books Library Project settlement agreement. That agreement has been proposed to resolve the dispute between Google and various rights holders about Google's plan to scan and electronically distribute many written works, including "orphan" works.
"I was at the courthouse from 8:30 onwards, with the team of New York Law School students who've been working on the Public Index. We didn't want to take any chances that we might not make it in. (Last time, we were among the very last people seated.) No worries there; we got great seats in the overflow room, and in the afternoon, in the courtroom itself. I'm very glad I had the student team along with me. Their observations and insights about the arguments and the lawyers were invaluable in helping me write up this post. Other than my conversation with them, I've avoided reading the press coverage; I wanted to provide a direct account of how I saw the day's events, without being influenced by others' takes."

I agree. Copyright exists to get as much into the Public Domain as soon as possible. Abandonware, whether software or books, should immediately enter the Public Domain. I have no idea how to accomplish that fairly, but I know that's best for the public and harms no creator (as they've abandoned their work already). So I can't see any argument against this idea, but I can see massive arguments against any particular implementations.

Simple, you have a yearly registration and nominal fee (say $1 per work). If the copyright holder doesn't register and pay the fee within say 30 days of a new year the copyright lapses and the work enters the public domain. Optionally you have the fee increase with the value of the copyrighted material (this could be done arbitrarily by raising the fee yearly, if the copyrighted material is worth enough money the fee will continue to be registered). This is basically the same idea as property taxes (you pay a few to keep the land even if you "own" it). The money made from this fee system could be tossed into general revenue, used to pay for the arts/etc, or whatever. I think the cost of copyright should be carried by the copyright holder and not by society (as it is right now since one automatically gets copyright for an absurdly long time just by creating a work).

You haven't thought about this very well. Everything we create is largely automatically copyrighted (I didn't make the rules) - that doodle you scrawl out on a piece of paper, the photograph you take of your dog, the short piece of prose you write to describe your neighbors sexual problem, the list is endless.

You think a good solution is to have creative types (and all of us are to one extent or another) actually pay the government for the mere privilege of creating stuff? This is absurd. What constitutes a

Last I checked under my method you'd be able to create as much as you desire, it just wouldn't be copyrighted for a very long time. I give away a lot of my work under creative commons because I believe it's in my best interests to actually make things available to people for free and allow them to re purpose it. As it turns out this is correct and I've made a living for over a decade now doing this. It's not my job to find a workable business model that you like.

You seem to have forgotten the parts where the creator of the work invests a potentially large amount of time and/or money to make it in the first place and then agrees to public distribution, neither of which they are under any obligation to do.

Giving up the ability to make and distribute further copies for a limited time might be considered chickenfeed compared to the huge privilege of having others' work freely available in public afterwards.

No, what the GP said was that the current system is in place to "protect copyright" and adding fees based on value of the work wouldn't be difficult and wouldn't inhibit any kind of creativity. There is already a registration fee for officially registering your work. Making that annual or "every 5 years" or something like that wouldn't be cost prohibitive for the creators or to administer and could potentially generate a useful source of cash to be used in supporting creative works or whatever else societ

You do not need to register your work to get or keep a copyright, however, and that is what the proposed fee would require. Besides, this suggestion violates an international treaty - which may or may not really matter, but it'd come up.

According to how I read TFA, this would be in violation of the Berne convention.

I also think that it in general would be a challenge for people that create stuff; a more appropriate limit might be say that you have to do this for every published work you want to keep copyright on.

Except that over the time period since we've adopted automatic copyright, people have grown used to the right to not have their vacation pictures used by a corporate advertising department that sees them on Flickr. There's a lot of non-commercial works out there, ones that people would (rightly or wrongly) be upset to see misappropriated.

Except that over the time period since we've adopted automatic copyright, people have grown used to the right to not have their vacation pictures used by a corporate advertising department that sees them on Flickr. There's a lot of non-commercial works out there, ones that people would (rightly or wrongly) be upset to see misappropriated.

How about a 5-year grace period before requiring registration?

I don't mind a 1-year grace (same as for patents) simply because some people might publish instantly upon crea

Simple, you have a yearly registration and nominal fee (say $1 per work).

I think that, at a minimum, you need a reasonable (say 7-10 years) "free" period. (In order to encourage deposit, and thus discourage the loss of works, I'd consider having a strong deposit -- of a copy of the work in the form protected -- requirement, which if not complied with within (say) 1 year would result in the work losing protection, but I wouldn't associate payment with that.)

The fastest way to get as much into the Public Domain as soon as possible is to abandon copyright, therefore I cannot agree with your premise.

I believe that Copyright exists to provide a person with the legal right of control over works which they own (and recourse should their control be usurped) up to a reasonable point, when the ownership is transferred to the state. That "reasonable point" has been debated and extended over time, complicating our current system.

The fastest way to get as much into the Public Domain as soon as possible is to abandon copyright, therefore I cannot agree with your premise.

I believe that Copyright exists to provide a person with the legal right of control over works which they own (and recourse should their control be usurped) up to a reasonable point, when the ownership is transferred to the state. That "reasonable point" has been debated and extended over time, complicating our current system.

Abandonware, or orphaned works, don't have a legal entity beyond works which do not have an identifiable owner, however so long as we have a date for the work's creation the work is still subject to that "reasonable point", and any time an owner can be identified, the work is no longer abandoned or orphaned.

If your principle of abandonware were instituted, how would a work be declared as abandonware, and how would you deal with the situation when the owner of an abandoned work comes forward after-the-fact?

The theory is that if you have copyright protections, people will produce more, and therefore more will wind up in the public domain.

If this is not true, then why should the general populous allow copyright to exist? Being as we are not benefiting from copyright law, should we not scrap it?

Take Slashdot hivemind favorite Neal Stephenson. Are you trying to tell me that I -- or better yet, some e-e-e-e-vil Hollywood studio -- should be able to make a movie today from his "Snowcrash" -- same title, characters, lift the dialogue, whole nine yards -- and not pay Stephenson a dime? Is that what you are proposing? Seriously?

Take Slashdot hivemind favorite Neal Stephenson. Are you trying to tell me that I -- or better yet, some e-e-e-e-vil Hollywood studio -- should be able to make a movie today from his "Snowcrash" -- same title, characters, lift the dialogue, whole nine yards -- and not pay Stephenson a dime? Is that what you are proposing? Seriously?

After sixteen years, why not?

Maybe extend it to thirty two years. The current copyright law is not how things have worked for the majority of human history.

Note that Shakespeare managed to make a decent living without copyright, although he was not one of the richest people in the world, unlike J.K. Rowling.

I know a lot of struggling writers, and I really don't see how current copyright law helps them any more than lottery tickets do. Copyright does not pay you to write a book, it pays you if people like yo

But copyright reduces the risks creators undertake when they author works because, as the post you quoted points out, people could otherwise jump in and take what somebody else created. And then they've expended a lot, received little, and have less incentive to keep creating. His hypo is exactly how copyright law helps them.

The percentage of starving artists that can afford $80,000 to go to court with full legal representation is small enough that I cannot see the Disney's of the world being overly concerned, beyond offering a small sum for the rights to avoid litigation.

Copyright does increase the size of the jackpot if you get lucky, but that is not so much a reduction in risk as a decrease in the risk/reward ratio./p.

Should copyright be used to hold people up who cannot make it with the work they produce, despite the value to others of that work being low or none, or at least less than it costs to produce it? Quite frankly, I've never seriously considered this as a possible justification because it's not an efficient use of resources. So, of course, my question for you is why should we encourage that amount of inefficient use of resources? Even current copyright is not perfectly efficient (after all, Disney can probably

The reality of the artist scene is that Van Goughs works were used to patch leaky hay carts (or at least one hay cart) during his lifetime. The value of artistic works is extremely volatile and varies with the whims of fashion. Many successful artists have spent time below the poverty line, while practicing their trade.

Most artists suffer the same fate, until they become known in popular culture. It is possible, that if Disney were to use your work without compensation beyond credit, you would be in a finan

You entirely sidestepped my question. Should copyright be used to hold up authors of works people do not determine to be valuable?

As far as Creative Commons licenses go, do you understand that CC has no power without copyright? That the license only works because copyright provides exclusive rights to authors, and it is these rights that the CC licenses out to others? So "moving in that direction" makes no sense.

Take Slashdot hivemind favorite Neal Stephenson. Are you trying to tell me that I -- or better yet, some e-e-e-e-vil Hollywood studio -- should be able to make a movie today from his "Snowcrash" -- same title, characters, lift the dialogue, whole nine yards -- and not pay Stephenson a dime? Is that what you are proposing? Seriously?

Well, he published it in 1992. Rufus Pollock wrote a pretty good paper on how to determine copyright terms a few years ago, and after running through the numbers, he estimated th

Given that 800 new books are published *every day* - it is fair to say that copyright does entice people to produce.
The "there is not such thing as imaginary property" crowd haven't come anywhere near proving that a system without copyright would generate anywhere near this amount of new content (which, because of copyright, isn't just rehashes and remixes of existing copyrighted material).
Is dismantling a system that entices authors in English speaking countries to publish 800 new books *every day* wor

Given that 800 new books are published *every day* - it is fair to say that copyright does entice people to produce.

The "there is not such thing as imaginary property" crowd haven't come anywhere near proving that a system without copyright would generate anywhere near this amount of new content (which, because of copyright, isn't just rehashes and remixes of existing copyrighted material).

Is dismantling a system that entices authors in English speaking countries to publish 800 new books *every day* worth risking so that less-than-original works based on existing concepts can exist?

A good question, but considering how infrequently it is made by advocates of copyright extension, I don't believe that much over 40 years is justifiable under any model.

I would also point out that a percentage of those 800 books are not based on original content but content that is old enough to be used without credit, compendiums of Shakespeare and Dickens and derivative works of those authors among others make up a large portion of our literature, so your case is over stated, but the question is do we hav

...you still have nothing to substantiate the claim that copyright entices people to produce. I stipulate with equal authority that the fact that there are only 800 new books and not 1000 new books makes it fair to say that copyright does not work.

The "there is not such thing as imaginary property" crowd haven't come anywhere near proving that a system without copyright would generate anywhere near this amount of new content

Given that 800 new books are published *every day* - it is fair to say that copyright does entice people to produce.

No it isn't. You haven't shown that those books would not be published, but for copyright.

For example, if literacy rates dropped significantly (IIRC the literacy rate in England was around 30% in Shakespeare's day), fewer books might be published due to a lack of audience. If books could only be published on a Gutenberg-style press, using laboriously hand-set type, and requiring manual labor

There are probably very few works which, if you tried hard enough, you would be unable to find the rights owner. However, no one is going to try hard enough for the 150million odd works who's ownership is unclear, this is one of the few situations where a law firm wouldn't be able to provide you all the billable hours you needed.

The fastest way to get as much into the Public Domain as soon as possible is to abandon copyright

That's only clearly true in very short run as a one time event; GP seems to think that the purpose of copyright is to encourage the greatest long-term rate of new material entering the public domain (which, clearly, given the trend of extensions so that nothing ever enters the public domain, isn't the purpose behind present copyright policy, and also isn't the express Constitutional purpose of copyright in the U

Copyright exists to get as much into the Public Domain as soon as possible.

That may be your opinion of what copyright should do, but the Constitutional purpose of copyright (and patent) protection is "To promote the Progress of Science and useful Arts". Getting the most into the public domain the fastest may or may not be the best way of doing that.

Abandonware, whether software or books, should immediately enter the Public Domain.

"To promote the Progress of Science and useful Arts". Getting the most into the public domain the fastest may or may not be the best way of doing that.

Well, just science, actually, which meant knowledge, back in the late 18th century when they wrote the Constitution. The useful arts are what patents are supposed to promote. (We have more vestiges of art meaning a technical skill: prior art, state of the art technology, a person having ordinary skill in the art, etc.)

Anyway, as it happens, getting the most into the public domain the fastest is basically exactly the best way to promote the progress of science. Consider a utopia of knowledge: Everyone who can create works, and is willing to create works, does so.

Sure, if you presume perfect altruism on the part of creators, getting everything immediately into the public domain is obviously ideal. When you start dealing with trying to get the best practical results in promoting progress in the real world, when the creators

Google's position is that other people's property can be sold to the public by a third party without permission from the owner or creator as long as the seller has copied it. The action of copying a work then confers the right to sell or distribute, with the controlling legal test being the convenience of some user.

The opt-out takings clause pretends a nonexistant practical protection for the original owners, which becomes impossible when the courts later invalidate google's claim to monopoly rights, rights which fly in the face of equal application of the law.

Since copying, rather than creation or contract, provides a very weak claim for the seisure of monopoly rights to property, the courts will necessarily, over time, invalidate the monopoly claim, leaving the principle that copying confers distribution rights to intellectual property, as long the distribution is convenient to the public, defined as any user except the author or owner.

There is no strong reason that such a legal principle, once established in law, cannot be extended to other kinds of digital property, such as medical, financial, and legal records, given their obvious value in the marketplace to users who are well endowed to fund both legislative and court based extensions. The action necessary to obtain such rights is, according to google, copying, a convenient test for the internet age.

Remember, your privacy is not a contract, it is just a policy, subject to revocation at any time.

That's a gross misrepresentation of Google's position, which is significantly complicated such that it can't be easily distilled into two sentences.. Here's a more adequate summary of my interpretation of Google's position:

Other people's properties can be digitally distributed. When a property owner can be identified, that owner has the right to set a price for sale or opt their property out of further distribution. When a property owner cannot be identified, proceeds will be collected for each sale, and that amount less administrative costs for the distribution are held by a third party until such time as the actual property owner stakes their claim on their property. At that time, the property owner can gain the same rights over distribution of their property as anyone else who has been identified as a property owner, and all parties who make use of the unidentified property owner clearing house will be obligated to abide by the property owner's decisions.

Monopoly power doesn't exist, because any property owner may opt to use any other distribution channel for their property, and all property that is being copied and distributed by Google can also be copied and distributed by any other party who desires to take the effort to scan the original work and transmit proceeds to the third party property owner clearing house for any property which they haven't explicitly gained the right to distribute.

You're correct that this principle can be applied to any other media. I see no reason why it shouldn't.

But who sets the proceeds? Can a non-profit like Project Gutenberg assume that the copyright holder is making no proceeds today, so not generating any proceeds themselves is also okay? If so, then essentially they could start indexing all works in copyright or not and only halt when so ordered. That'd go a long way to limit copyright...

That's a great question, and I suspect that the answer to this is buried somewhere in all the court paperwork. Call me lazy: I RTFA, but I didn't real all of the court documentation...

Here are some ways that it _could_ work fairly:1.) An amount set by the clearinghouse. The clearinghouse would act on behalf of (and in the interest of) the owner and set the price.2.) An amount set by congress.3.) An amount determined by a long-term auction (determining how much buyers are willing to pay) by the seller.4.)

While the idea that 'orphan' books could be made available to the public is very pleasent and downright helpful to scholars, the Opt-Out position Google has taken is fundamentally at odds with the copyright system. US Copyright law does not distinguish the protections it offers to properties based on their commercialization or availabilty and the 1978 changes to the copyright act extending protections to unpublished works clearly indicates that inaction does not negate the protections offered. If the US C

You are fundamentally correct, but I feel the need to make one comment. the settlement would actually lead to the following:

If this is allowed to go forward it creates a precedent that if Google make even the vaguest effort to contact the original owner of a work, Google may go ahead and publish (and profit) from it provided that Google set aside a portion of those profits for the owner should they ever claim it. This could be anything from music, to your child's artwork, to that naughty sextape you made in

"You're correct that this principle can be applied to any other media. I see no reason why it shouldn't."
Amazingly enough it is.... a company (monopoly) set up with exclusive rights to collect money for any works on behalf of the copyright owners where the owners must register to receive their pay and at the same time absolves the distributor for figuring out who has the copyright.
This company in the USA is called... ah yes our friend soundexchange (Some posts a while ago were rather mean spirited tow

It was great to read that the Internet Archive had what was viewed as the best and most cohesive argument. However, I think they are playing a weak card by not arguing for turning the works into the public domain. In the end, these books on Google's servers are not really free, they are only free for Google to keep, and for you to look at behind glass. If they were actually turned over into the public domain, then everyone could use them and benefit. They could be hosted at the Internet Archive, or on Project Gutenberg in various formats available to everyone. This is what I would really like, not just freedom for one company to profit from a special privilege.

Why not? Books automatically have their copyrights expire after a certain period. Why shouldn't unclaimed orphaned books become part of the public domain? For example, if a book is unclaimed and has been orphaned for five years, it should be in the public domain. This would be beneficial to everyone, giving the authors some fame and prestige, giving us some rare books otherwise unavailable, and not hurting any publishers who aren't making money from them anyways. It would be good for all of society.

The Google settlement is only good for Google, and those who don't mind asking Google if they can read books through a glass window. After all, Google will not allow anyone to download these books. Their job is to hoard information, and to make it available in a way that is convenient enough for individuals, but inconvenient enough that no one could download the data and compete with them. Lazy people think it's okay because it's better than the scraps we have otherwise, but giving one company control of these books is not a solution.

Indeed. We used to have a system for this: works automatically entered the public domain if they were published without being registered, and the copyright term expired fairly quickly, requiring the author to file a renewal in order to get an additional copyright term. Most authors who created and published works did so without ever bothering to get copyrights; of those who did register, most didn't bother to renew.

Apparently, there are a lot of authors who don't care about getting copyrights, or who care e

Here is what I am confused about. The controversy seems to be about
whether Google has the right to display excerpts from books they've
copied, without permission from the copyright holder.

However, I haven't seen anyone question the fact that Google has
already copied millions of entire books that they didn't purchase
and don't physically own. When did this become legal, and why can't I
do the same (or can I)?

Google has presumably saved $100s of millions by not
having to purchase the books they are scanning, like ordinary people (in
the U.S.) are expected to. (And I get the sense that ordinary people
may even be taking a legal risk by scanning books they do own,
because then they won't have to buy the ebook version.) What makes
Google special in this regard? Why aren't they subject to a $200,000
per book (or even per chapter, if based on the RIAA model) copyright
violation suit?

I have an interest in this, because I am collecting PDFs of my own
library (which I have purchased and physically own). Yet it seems that
I may be skirting the law, particularly if I download the PDFs from
piratebay etc., risking a possible huge infringement suit.

Actually, I would pay a reasonable price for a clean, unsecured PDF of
better quality and smaller file size than what I can download or scan
myself, for my permanent electronic library, but publishers have chosen
not to offer this. But I will never buy a DRMed ebook that in I can't
read on any device I want, that will stop working when the approved
reader dies or the company changes its mind or goes out of business.
Just like a my physical library of fine books, I want a permanent
electronic library of high-quality PDFs.

The answer is simple, the AA's, etc. don't want to challenge the modern interpretation of copyright laws that were written a couple of centuries ago. As this modern interpretation is one they have helped shape by going after only people with shallow pockets, mainly over the last half century as duplication technologies has emerged. Before then copyright was about keeping one publisher from stealing another publishers work.

However, I haven't seen anyone question the fact that Google has already copied millions of entire books that they didn't purchase and don't physically own. When did this become legal, and why can't I do the same (or can I)?

It didn't and that's why there's a class action lawsuit against Google... the problem is, the class and Google have already come to an agreement, but they need permission from the state to enact the settlement. See, the way class action lawsuits work is, if you show up a year after the lawsuit is settled you can say "hey, I want a piece of that!" and they'll give you some, assuming you can prove you're a member of the class. What you can't do is say "hey, I don't agree with that!" cause the case has alrea

I'd like to see the judge mandate that google can scan whatever they want, but they can't hold exclusive license to them - but if google maintains exclusive control and a copyright owner later asserts his rights, as he has a right to do, google can first, pay him, and second, stop distributing his content. If google has non-exclusive rights, you can't ever put that cat back in the bag.

Why aren't they subject to a $200,000 per book (or even per chapter, if based on the RIAA model) copyright violation suit

They should be. There is no legal reason why they are not, other than the fact that their sock puppet, the Writers' Guild, allowed a settlement for a tiny fraction of this amount in a class-action lawsuit. This leaves Google with a massive competitive advantage. Anyone else who tries to enter the same market has to risk the $200,000 fine per work for wilful commercial infringement. There's no incentive for the guild to offer a favourable settlement to anyone else.

I have an interest in this, because I am collecting PDFs of my own library (which I have purchased and physically own). Yet it seems that I may be skirting the law

in other words, everyone should be able to do what google does, but only google does it, not as an abuse of their financial power, but because their financial power puts them beyond the abuse of our broken intellectual property laws

google is not the problem. our antiquated intellectual property laws are

This is about scanning library books, not collecting PDFs -- but if this settlement passes, you'll be able to do the same thing as Google.

However, doing the same thing as Google will require that you collect revenues for any purchases of these scans (and remit them to the copyright holders should they be identified), and recognize and exclude any commercially available books, and likewise obey a huge number of other restrictions and limitations.

Google can't legally do what they've done, which is why we're talking about whether or not the settlement is fair. The difference between you and google is that google was willing to dare the rights-holders to sue them so they could work something out. You don't have the balls or the wallet.

I know of a situation where there has been a great demand for reprints of old (about 50 years worth) of a certain hobbyist compilation book series. The original publisher is still in business and publish a hobbyist magazine in this field, after many years of demand the publisher continue to assert that the original contracts (and therefore copyright law) with the numerous contributors to the book do not allow them to reissue the work even if they wanted to. Would anyone of the hundreds if not thousands of

It's fairly common for the copyright to either be owned by the author and licensed to the publisher, or temporarily transferred to the publisher and then revert to the author when the book goes out of print. It's unusual for the publisher to own the copyright on out-of-print works, which is why you often see a new edition of books published by someone else after the first edition goes out of print for a bit.

If there are multiple authors, then they each hold the copyright on their own portion, unless the

If this is an opt-out system, they will be able to make this out of print material available without tracking down any individual author. If this becomes an opt-in system, they won't bother and the material will languish until it properly enters the public domain (which if Disney has it's way will be never).

There are legitimate arguments on both sides, but suffice to say if copyright weren't essentially perpetual already a lot of these issues would be m